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Judges as legislators Babar Sattar Saturday, April 02, 2011

The writer is a lawyer based in Islamabad.

The judicial reasoning in Sindh High Court Bar Association vs. Federation of Pakistan (whereby the Supreme Court has struck down the Parliamentary Committee’s decision not to confirm certain nominations of the Judicial Commission) has multiple problems.

To start with it is disingenuous, for while interpreting provisions of the Constitution introduced through the 19th Amendment it disregards the fact that these recommendations were actually proposed by the Supreme Court itself through its interim order while hearing cases challenging the 18th Amendment. It seems logically inconsistent for it relies on flawed deductions, and the mechanics employed by the Constitution to give effect to principles are mistaken for principles themselves. The changes introduced to the Constitution by the latest amendments are underplayed and the court forces old wine into new bottles.

While expounding provisions of the Constitution to delineate the respective scope of authority of the Judicial Commission and the Parliamentary Committee, the court doesn’t rely on settled principles of textual interpretation. As a consequence, disparate treatment is meted out to the role and importance of the Judicial Commission and the Parliamentary Committee.

In defending the authority of the Judicial Commission (essentially run by the five senior most judges of the Supreme Court) the apex court doesn’t seem to have applied restraint and taken into account the age-old maxim that no one should be the judge in his own cause.

And while the court seems conscious of the principle of separation of powers and the limitation it applies to the scope of judicial authority, such consciousness does not shape the operative part of the ruling.

Let us recall that the Supreme Court opted to hear challenges against the 18th Amendment despite the constitutional prohibition that “no amendment of the Constitution shall be called in question in any Court on any ground whatsoever”. While the case remains pending, the Supreme Court, through an interim order, provided parliament a window of opportunity to re-amend the Constitution to the court’s liking. As this sword hung over the 18th Amendment, the parliament passed the 19th Amendment to appease the Supreme Court. Parliament abided by the court’s ‘recommendation’ that the Parliamentary Committee should give reasons if it doesn’t endorse the Judicial Commission’s advice, but it didn’t write in the Constitution that such reasons shall be justiciable as the court wanted. Through the Judicial Nominations Case the court has now had its way.

The interim ruling in the 18th Amendment case was not a marvel of jurisprudential merit. But those who followed the proceedings of the case feared that the dreaded adoption of the basic structure theory and striking down of a provision of the Constitution was imminent.

When the court found a pragmatic solution to avert such outcome, there was relief. One hoped that if parliament responded with maturity and addressed the concern that the turf of the apex court was being encroached, the court would also back off. By adopting the 19th Amendment, parliament rose up to the expectation. Unfortunately, the court has not backed off.

In striking down the Parliamentary Committee’s rejection of a few judicial nominations, the ruling states that as law doesn’t explicitly oust the court’s jurisdiction, it can question the merit of the Parliamentary Committee’s decision. This logic would be fine if it was uniformly applied. The court doesn’t state that accordingly the recommendations of the Judicial Commission are also subject to judicial review.

Further, we also know that the court doesn’t shy away from exercising authority over issues even where its jurisdiction has been explicitly ousted, such as in reviewing a constitutional amendment. (The only exception being the ouster clause within Pakistan Army Act, which is consistently upheld.)

The ruling in the Judicial Nominations case lacks rigour. First, its deductions do not flow logically. While allegiance to the principle of judicial independence is a cornerstone of our Constitution, why assume that should serving judges not have a veto over who adorns judicial robes judicial independence will be compromised?

What about all those countries that boast independent judiciaries with judges having absolutely no role to play in the appointment of future judges? Second, the ruling confuses principles enshrined in the Constitution with the mechanics adopted to realise them. Judicial independence can be secured through multiple ways.

Appointment of judges through a rigourous, consultative and transparent mechanism is imperative to safeguard such independence. But while discussing who should play the lead role in such process - members of the executive, judiciary or legislature – we are talking mechanics, not principles. And then the ruling doesn’t follow the established principles of textual interpretation and makes no attempt to give plain words their ordinary meaning. It approvingly refers to the Al Jihad case in which the Supreme Court declared that in the select context of seeking the chief justice’s views regarding the appointment of judges, the word “consultation” would mean “consent”.

The Al Jihad case was celebrated, not for its approach to constitutional interpretation, but as a mark of the Supreme Court’s desire to break from the past and stop functioning as an appendage to the executive. It wasn’t right but it became acceptable in such socio-political context. Today, there is no such context. The independence of the judiciary was secured through a mass national movement and the last thing our Supreme Court can be accused of is being an extension of the executive.

Why is it impossible to contemplate that the Constitution was amended to introduce bipartisan parliamentary oversight over crucial appointments such as those of judges and the election commissioner? What would be the point of making such drastic changes if the Judicial Commission and the Parliamentary Committee were merely meant to step into the erstwhile shoes of the chief justice and the federal government respectively, with the former having decisive control over who becomes a judge?

The court believes that the work of the Judicial Commission will be rendered ‘nugatory’ if the Parliamentary Committee has the right to question its recommendations. Can reasonable minds not reach different conclusions based on the same information?

The test prescribed by the Supreme Court is that it is illegal for the Parliamentary Committee to consider any information about judicial nominees that has been deliberated upon by the Judicial Commission. What independent stream of information does the Parliamentary Committee have for the consideration of which the Constitution specially created it?

In effect, each time the Parliamentary Committee disagrees with the Judicial Commission, it would have travelled beyond the zone of legality according to the Supreme Court test. Why have the Parliamentary Committee at all then? To discuss the antecedents of proposed judges, we are told, and nothing else. And please don’t think the court is encroaching upon the vast powers of the legislature. The eight member bipartisan parliamentary committee is actually a part of the executive according to this ruling.

The Supreme Court is a court of limited authority and incapable of producing elixir for all our national ills. So far it has been the khaki saviour instinct that has molested our Constitution and political process. Would it not be a shame if the apex court followed in the stead and allowed a do-good approach to interpret the Constitution?

Emphasising the doctrine of limited powers in the much celebrated PCO Judges Case of 2009, the Supreme Court held that, “neither the Supreme Court itself possesses any power to amend the Constitution, nor can it bestow any such power on any authority or any individual.” It is a settled principle of law that what cannot be done directly, cannot be done indirectly.